Boehm v. Botsford

• Decision Date: 18 January 1890
• Citation: 12 S.W. 786,52 Ark. 400
• Parties: BOEHM v. BOTSFORD
• Court: Arkansas Supreme Court

12 S.W. 786

52 Ark. 400

BOEHM v. BOTSFORD

Supreme Court of Arkansas

January 18, 1890

APPEAL from Arkansas Circuit Court in Chancery, JOHN A. WILLIAMS Judge.

Botsford and Edgarton brought this suit against Boehm to remove a cloud from the title to certain lands. By their complaint they claim title to the lands by virtue of deeds from the Auditor of State, conveying them as lands held by the State under forfeitures for the non-payment of taxes for the year 1868, and also by a decree confirming the tax sale through which the State acquired title. The decree confirming the tax sale was rendered in 1876 and is exhibited with the complaint. Boehm answered, setting up title to the lands under a conveyance executed to his vendor by the State Land Commissioner, pursuant to a sale thereof by the State as swamp lands, made in 1850. He also claimed title through one Price, under a purchase made by the latter at a sale for the non-payment of taxes for the year 1876. On the trial the defendant offered to prove that "the pretended assessment, levy of taxes, return of the delinquent list advertisement and sale of the lands in controversy for the year 1868, were absolutely void, and that at the time of the pretended decree of confirmation of the plaintiff's tax title, defendant and his vendor were nonresidents of the State and out of the jurisdiction of the courts thereof;" and insisted that as such he had the right to show that the tax proceedings and sale referred to were illegal. But the court refused to permit such showing holding that such defenses were cut off by the decree of confirmation. The court gave judgment for the plaintiff granting the relief sought by his complaint, and the defendant appealed.

The statute [Mansf. Dig., secs. 576-583] under which the decree of confirmation relied upon by the plaintiff was obtained provides that notice of the application for such decree shall be published "six weeks in succession in some newspaper published in this State," and that such notice shall call "on all persons who can set up any right to the lands so purchased in consequence of any informality or any irregularity or illegality connected with such sale, to show cause at, etc., * * * why the sale * * * should not be confirmed." (Sec. 577.) Section 581 provides "that the judgment or decree * * * confirming said sale shall operate as a complete bar against any and all persons who may hereafter claim said land...